Changes to Flexible Working

Changes that extend the right to request flexible working came into force on 30 June 2014.

Any employee with 26 weeks’ continuous service is able to make an application to work flexibly for any reason.

Employers must deal with requests in a ‘reasonable’ manner.

Note that the legislation does not give employees the right to work flexibly. Instead it provides a right to request flexible working. An employee must not have made a flexible working request in the past 12 months.

What does the legislation say?
The legislation states that an employer can only reject the flexible working request on one or more of eight specified business grounds.

What does ACAS say?
ACAS has published a Code and Guidance on handling requests to work flexibly. The Code will have statutory force and will be taken into account by employment tribunals when considering relevant cases.

The employer’s decision
The Code explains that on receiving a request, an employer should arrange to discuss it with the employee as soon as possible. It is good practice for an employer to allow employees to be accompanied at a discussion by a work colleague or a trade union representative if they wish. The employer should then consider the request objectively, carefully looking at the benefits of the requested changes in working conditions for the employee and the business and weighing these against any adverse business impact of implementing the changes. The employer must weigh up the advantages, possible costs and potential logistical implications of granting the request.

If the employer rejects the request, it must be for one of the 8 business reasons stipulated and an explanation of these reasons, including how they apply to the application, must be given to the employee.

How to deal with competing requests?
The Guidance suggests that each request should be taken in turn. Having considered and approved the first request, the employer should remember that the business context has now changed and can be taken into account when considering the second request against the business reasons.

If the employer is not sure whether it can accept the request for business reasons it may agree flexible working arrangements for a temporary or trial period rather than rejecting the request. In all cases it may well be prudent to have a yearly contractual review right so that the employer can re-assess the business need and the employee can regularly review their situation.

What are the consequences of breach?
The employee may bring a tribunal claim if the employer wrongly treats the request as withdrawn or if the employer’s decision is not made in time. The claim must be brought within three months of the date on which the application is treated as withdrawn or the final decision is communicated.

Recommended action for employers
Review and amend existing flexible working policies.

To make flexible working work, it will be important to ensure that employees understand not only their rights, but also how business needs will dictate employers’ decisions. Employers can still reject requests if there are legitimate business reasons for doing so. The right to work should be able to flexibly operate to the benefit of both employees and the organisation as a whole.

Tom Redfern